IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gregory A. Smith, :

Plaintiff, :

v. : Case No. 2:11-cv-897

 : JUDGE MICHAEL H. WATSON

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Gregory A. Smith, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his applications for disability insurance benefits and

supplemental security income. Those applications were filed on

June 5, 2008 (disability) and May 28, 2008 (SSI) and alleged that

plaintiff became disabled on April 1, 2004. 

After initial administrative denials of his claim, plaintiff

was given a hearing before an Administrative Law Judge on May 4,

2010. In a decision dated June 21, 2010, the ALJ denied

benefits. That became the Commissioner’s final decision on

August 5, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on December 12, 2011. Plaintiff filed his

statement of specific errors on March 20, 2012. The Commissioner

filed a response on April 27, 2012. No reply brief was filed,

and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 35 through 45 of the record. Plaintiff, who was 55

years old at the time of the hearing and is a high school

graduate, testified as follows.

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After graduating from high school, plaintiff began working

in a coal mine, but the mine shut down in 1979. After that, he

worked variously as a carpenter, custodian, and meat cutter. He

went back to the coal mines in 2001 and worked on and off for

several years, but had difficulty due to nightmares about the job

after another worker was killed. He stopped working in 2004 when

he was sent to prison. 

At the time of the hearing, plaintiff was seeing physicians

at the Ford Street Clinic. He was also seeing a counselor at

Jefferson Behavioral Health. He received counseling for

depression and anxiety as well as post-traumatic stress disorder. 

His major problem is just being around people. He experiences

difficulty concentrating and becomes nervous. He is able to go

to the grocery store, however.

In a typical day, plaintiff would make his wife’s breakfast,

nap, do some chores, and cook dinner. He has some physical

problems including arthritis and breathing difficulties, but the

primary issue with working is due to his mental problems. 

III. The Medical Records

The medical records in this case are found beginning on page

214 of the administrative record. The pertinent records - that

is, those that relate to plaintiff’s psychological impairments -

can be summarized as follows.

Plaintiff began seeing a social worker, Mr. Bousquet, on

December 5, 2001. Notes of sessions from 2001 through 2002

appear in the record. They reflect a diagnosis of PTSD and show

that plaintiff was taking medication. In an accompanying cover

sheet, Mr. Bousquet said he had no idea how plaintiff’s disorder

was affecting him in 2008. (Tr. 214-34). When plaintiff went to

prison in 2004, a mental health screening was done, and he was

not viewed as needing any mental health services. (Tr. 235).

On June 20, 2008, plaintiff’s counselor, Mr. Taylor, filled

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out a questionnaire indicating that he had first seen plaintiff

for intake purposes on March 4, 2008, and had last seen him for

counseling on June 19, 2008. Plaintiff exhibited a depressed

mood and had symptoms of PTSD. He was quite suspicious of

others. Mr. Taylor noted some mild to moderate problems with

concentration. Plaintiff was diagnosed with major depression and

chronic PTSD. He did not have any cognitive problems but might

have some problems completing tasks in a timely fashion. He also

had a social impairment which affected his ability to work with

others, but there was a possibility that he could work alone. 

(Tr. 301-03).

Mr. Bousquet subsequently saw plaintiff for purposes of a

disability evaluation. In a report dated September 2, 2008, he

stated that plaintiff had been in counseling for the past four

months and was depressed all the time. Plaintiff seemed anxious

during the evaluation and his mood was depressed and sad. He

reported a loss of interest in daily activities and described

mood swings as well as trust issues. His cognitive abilities

were in the average range. He described his daily activities as

doing some household chores, watching televison, and occasionally

visiting relatives or going fishing. Mr. Bousquet also diagnosed

a major depressive disorder, PTSD, and a personality disorder

with dependent, avoidant and borderline features. He rated

plaintiff’s GAF at 50 and concluded that plaintiff had a moderate

limitation in his ability to relate to others, no impairment in

his ability to understand, follow and remember simple

instructions or directions, a moderate impairment in his ability

to maintain adequate persistence and pace, and a moderate

impairment in his ability to deal with the stress and pressure of

everyday work activity. (Tr. 322-28). A state agency reviewer,

Dr. Lewin, reached similar conclusions, noting that plaintiff

“would be able to work at a steady pace to sustain simple tasks

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and can relate[] at least superficially with others.” (Tr. 329-

46). That evaluation was affirmed by another state agency

reviewer, Dr. Tishler, who also observed that plaintiff had not

been fully compliant with counseling appointments and was

completing various tasks such as painting a house and barn door

without reporting flashbacks. (Tr. 362).

On January 20, 2009, Mr. Taylor provided a treatment

summary. His summary showed little change in plaintiff’s mood

but some increase in productivity. He remained suspicious of

others and continued to report flashbacks. His prognosis was

“guarded despite treatment.” (Tr. 363). In a subsequent letter,

Mr. Taylor repeated many of these comments and noted some

difficulty maintaining concentration, although plaintiff’s memory

was not impaired. His diagnoses were the same, and plaintiff’s

GAF was rated at 58. (Tr. 373-74). An attached mental capacity

assessment form showed a marked limitation in the ability to work

with others or relate to the general public, and also a marked

inability to complete a workday or work week without interruption

from psychologically-based symptoms. (Tr. 376). Mr. Taylor

completed a somewhat similar form in April, 2010. (Tr. 420-21).

 IV. The Vocational Testimony

Mr. Bell, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 45. He 

characterized plaintiff’s past jobs as ranging from medium to

heavy, and from unskilled to semi-skilled. 

Mr. Bell was asked some questions about a hypothetical

person who was 55 years old and had plaintiff’s education and

work experience. Additionally, that person could work at all

exertional levels, but could work only in a low-stress

environment with no production line or assembly-type pace and

with no independent decision-making required. Also, the person

could do only unskilled work involving only routine and

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repetitive instructions and tasks, and could not interact with

the general public at all, and only minimally with co-workers and

supervisors. Mr. Bell testified that such a person could do a

number of heavy, medium and light jobs such as kitchen attendant

or office cleaner. However, if the person were off task 20

percent of the time, no jobs would be available, and missing more

than two days of work per month would also be inconsistent with

sustaining employment. 

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 9

through 24 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act through

December 31, 2008. Next, he found that plaintiff had not engaged

in substantial gainful activity from his alleged onset date of

April 1, 2004 through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including major depressive

disorder, posttraumatic stress disorder, and personality disorder

with avoidant and antisocial traits. The ALJ also found that

these impairments did not meet or equal the requirements of any

section of the Listing of Impairments (20 C.F.R. Part 404,

Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a full range of work at all exertional

levels, but that he had nonexertional limitations including the

need to work in a low stress environment with no production line

or assembly line type of pace, no independent decision-making

responsibility, no more than unskilled, routine and repetitive

work, no interaction with the general public and no more than

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occasional interaction with coworkers and supervisors. The ALJ

accepted the vocational expert’s testimony that someone with such

limitations could perform various jobs that existed in

significant numbers in the regional economy, including truck

unloader, kitchen attendant, or office cleaner. As a result, the

ALJ concluded that plaintiff had not demonstrated an entitlement

to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises the

following issues. First, plaintiff argues that the ALJ erred in

the weight he assigned to the opinion of plaintiff’s treating

therapist, Mr. Taylor. Second, plaintiff argues that the ALJ did

not include all of the relevant mental limitations in the

hypothetical question posed to the vocational expert. The Court

generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

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Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

The Court begins its analysis by stating the legal standard

applicable to reviewing an ALJ’s decision not to give controlling

weight to the opinion of a mental health counselor who is neither

a psychiatrist or a psychologist. As explained in Potter v.

Astrue, 2010 WL 2679754 (S.D. Ohio June 2, 2010), adopted and

affirmed 2010 WL 2679753 (S.D. Ohio July 6, 2010), although such

a counselor is not considered an “acceptable medical source,” and

therefore not subject to the treating physician rule stated in 20

C.F.R. §040.1527(d), a treating counselor’s opinion cannot be

rejected arbitrarily. Rather, Social Security Ruling 06-03p

provides that the opinions of such sources “are important” and

must be evaluated “on key issues such as impairment severity and

functional effects, along with the other evidence in the file.” 

Consequently, as in Potter, if it is not clear how the ALJ

applied SSR 06-03p or arrived at a residual functional capacity

finding, a remand may be in order, and the same result may be

required if an ALJ’s decision does not set forth “some basis for

why he was rejecting the opinion” of a non-medical source. Cruse

v. Comm’r of Social Security, 502 F.3d 532, 541 (6th Cir. 2007). 

It is important to keep in mind, however, that there is no

requirement, as there is for opinions from treating physicians,

that the ALJ articulate good reasons for his or her decision

assigning specific weight to the opinion of such a source. See,

e.g., Mulkey v. Comm’r of Social Security, 2011 WL 4528485, *6

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(W.D. Mich. June 14, 2011), adopted and affirmed 2011 WL 4528479

(W.D. Mich. Sept. 29, 2011)(“[b]ecause [claimant’s therapist] is

not an acceptable medical source, the ALJ was not required to

provide good reasons for the weight given to her opinions under

§§ 404.1527(d)(2), 416.927(d)(2)”).

The ALJ’s decision in this case says the following about Mr.

Taylor’s evaluations of the severity of plaintiff’s mental

impairments. After reciting in comprehensive detail the

substance of each visit between plaintiff and Mr. Taylor,

including plaintiff’s description of his activities and Mr.

Taylor’s evaluations of plaintiff’s abilities, the ALJ first

noted that Mr. Taylor’s report that plaintiff’s GAF was 58

indicated no more than moderate symptoms. Next, he stated that

Mr. Taylor’s opinion as to various marked impairments was not

consistent with the evaluation done by Mr. Bousquet or to the

record in its entirety. He also noted inconsistencies between

Mr. Taylor’s opinions and his treatment notes, but still assigned

some weight to those opinions. Last, the ALJ stated that his

residual functional capacity finding was based on the opinions of

the state agency physicians. (Tr. 22-23).

The specific criticisms which plaintiff has leveled at this

portion of the ALJ’s decision are that its rejection of Mr.

Taylor’s views is too cursory, that it omits reference to many of

the factors set forth in SSR 06-03p, and that it incorrectly

relies on isolated comments about plaintiff’s social activities

as evidence of an inconsistency between Mr. Taylor’s treatment

notes and his ultimate conclusions about how severe plaintiff’s

impairments actually are. As part of his argument, plaintiff

also contends that the opinions which the ALJ adopted in lieu of

Mr. Taylor’s were outdated and did not reflect a continued

worsening of plaintiff’s condition after 2008.

As to this last point, the Commissioner correctly notes that

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several subsequent state agency reviewers examined the initial

assessment done in 2008 and affirmed it. The Court agrees that

the record shows that the state agency reviewers’ final opinions

were not based on outdated information, so that plaintiff’s

argument on this issue lacks merit.

With respect to the ALJ’s treatment of Mr. Taylor’s views,

it is true that the ALJ did not explicitly mention some of the

factors set forth in SSR 06-03p, but, at the same time, the

administrative decision shows that he was clearly aware of and

took into account matters such as the length of the treating

relationship, the number of counseling sessions, and the way in

which Mr. Taylor supported his evaluation of plaintiff’s mental

capacity. Each counseling session is detailed in the opinion, so

that it reflects both the length of the treating relationship and

the frequency with which plaintiff sought counseling. The ALJ

also noted several perceived inconsistencies between Mr. Taylor’s

determination that plaintiff had a number of marked impairments

and his counseling notes, and despite plaintiff’s efforts to

downplay the fact that he appeared to socialize on occasion or to

be comfortable in family settings, those statements do appear in

the record, as does the continued discrepancy between Mr.

Taylor’s assignment of a GAF score which reflects only moderate

impairments and his opinion that plaintiff has many marked

impairments. Additionally, the various state agency reviewers,

including Mr. Bousquet, who actually examined plaintiff, were

unanimous in their opinion that plaintiff could work despite his

various psychologically-based symptoms. Given that the ALJ was

not required to articulate his reasons to the same degree as if

Mr. Taylor had been an “acceptable source,” and given the

deference which this Court owes to an ALJ’s resolution of

conflicts in the medical evidence, see Burton v. Halter, 246 F.3d

762 (6th Cir. 2001), the Court finds no error in the way in which

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the ALJ considered and assigned weight to the opinions of Mr.

Taylor, plaintiff’s treating counselor.

The only other error assigned by plaintiff relates to the

hypothetical question posed to the vocational expert. He asserts

that no portion of the hypothetical question addressed Mr.

Bousquet’s finding that plaintiff was moderately impaired in his

ability to deal with daily work stress or to adapt to changes in

the workplace. In particular, Mr. Bousquet found that “[t]he

findings suggest that under the conditions of stress and pressure

it is likely that the claimant will experience an exacerbation of

his psychological problems.” (Tr. 328). Plaintiff apparently

reads this comment, which followed immediately after the finding

of a moderate impairment in this area, to mean that due to his

PTSD and his prior traumatic work experience, even a moderate

impairment in this area might prevent him from working, and that

the failure specifically to include that concept in the

hypothetical question posed to Mr. Bell (and, by extension, in

the ALJ’s residual functional capacity finding) was error.

Here, however, the ALJ asked Mr. Bell to assume that

plaintiff could work only in a low-stress environment with no

production line or assembly-type pace and with no independent

decision-making required and that plaintiff could do only

unskilled work involving only routine and repetitive instructions

and tasks. These limitations are reasonably consistent with

someone who has a moderate impairment in the ability to withstand

the stress and pressure of a work environment. Mr. Bousquet did

not preclude plaintiff from engaging in any work activity, nor

did he characterize plaintiff’s impairment in the area of

workplace stress to be marked. A fair reading of this portion of

his report is that because workplace stress could cause

plaintiff’s symptoms to worsen, he needed to be in a low-stress

workplace so that the potential for exacerbation of his symptoms

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was kept within manageable limits. Thus, the Court finds no

error in the way in which the ALJ incorporated this finding into

the hypothetical question posed to Mr. Bell, or into the mental

residual functional capacity finding. Because Mr. Bell

identified jobs which someone with that limitation, as well as

the other limitations found by the ALJ, could do, and the ALJ

reasonably relied on that testimony in finding that plaintiff

could, despite his psychological impairments, engage in

substantial gainful activity, the Court concludes that there is

no basis upon which this case should be reversed or remanded to

the Commissioner.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

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waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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